CAAF decided United States v. Castellano, No. 12-0684/MC, 72 M.J. 217 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that since an act of sodomy may not be criminalized unless there are factors that remove sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas, then the existence of such factors must be determined by the trier of fact, reversing the NMCCA and setting aside the finding of guilty of sodomy and the sentence.

Judge Ryan writes for a unanimous court, with Judge Stucky concurring in a separate opinion in which he voices some non-dispositive (to this case) disagreement with the rest of the court.

The Appellant was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of one specification of attempted adultery, two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of aggravated sexual contact), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

The NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

The Appellant argued that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see alsoUnited States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)), and as it did again afterward (seeUnited States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012). And the NMCCA is not alone. The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”).

But CAAF explains that this conclusion is wrong. Judge Ryan begins her discussion by explaining that “in Lawrence, the Supreme Court identified a constitutionally protected liberty interest in private sexual activity between ‘full[y] and mutual[ly] consent[ing]’ adults.” Slip op. at 10 (quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003)). She continues, explaining that in Marcum, the court upheld the constitutionality of Article 125’s criminalization of sodomy by construing the statute to apply only to acts of sodomy that involve a factor identified by the Supreme Court as not involved in Lawrence, or a factor unique to the military environment that affect the nature and reach of Lawerence. This leads to a critical analytical turning point: Marcum factors are not statutory elements, however “but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction.” Slip op. at 11-12. Accordingly, the existence of such a factor cannot be left to the military judge’s discretion.

It takes longer for me to get audio of a hearing that I participated in, from the recording device in the courtroom that is located in the same building as my office and the office of the person who pulls the audio… CAAF’s handling of argument audio might be the only system that moves faster the closer to Washington D.C. it gets.

The last scheduled oral argument at CAAF in January is in United States v. Castellano, No. 12-0684/MC, on the following granted issue:

In Miller v. California, the Supreme Court held that the trier of fact must determine whether judicially-created factors that distinguish between constitutionally-protected and criminal conduct are satisfied. The factors identified in United States v. Marcum are an example of such factors but the lower court held that the military judge must determine whether the Marcum factors are satisfied. Who determines whether they have been satisfied?

Lance Corporal Castellano was originally charged with unspecified sexual assaults and forcible sodomy involving multiple alleged victims. However, he was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of the unspecified sexual assault charges), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

However, in June, 2012, the NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.

The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.

Specifically, this Appellant argued before the NMCCA that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see alsoUnited States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)) and as it has again since (seeUnited States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012).

And the NMCCA is not alone: The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”). Moreover, the Marcum factors appear in another case this term: United States v. Goings, No. 11-0547/AF. In that case, CAAF is asked to apply the Marcum factors to a conviction of indecent acts in violation of Article 134 (though that case was tried by a military judge alone, limiting the analytical similarities between it and Castellano).

All these factors mean that CAAF’s decision to grant review of this issue make this case one to watch closely. And the Appellant’s brief opens with some strong language:

CAAF has granted review of the following issue whose resolution will have widespread effect:

IN MILLER v. CALIFORNIA, THE SUPREME COURT HELD THAT THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLY-CREATED FACTORS THAT DISTINGUISH BETWEEN CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM ARE AN EXAMPLE OF SUCH FACTORS BUT THE LOWER COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO DETERMINES WHETHER THEY HAVE BEEN SATISFIED?

In Marcum, the Court of Appeals for the Armed Forces (CAAF) outlined three factors used to determine whether certain sexual activity falls within the liberty interest outlined in Lawrence. 60 M.J. at 207. These factors are questions of law properly analyzed by the military judge, not questions of fact to be determined by the trier of fact. United States v. Stratton, No. 201000637, 2012 CCA LEXIS 16, at *9, unpublished op. (N.M.Ct.Crim.App. 26 Jan 2012); see United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009) (holding that military judge does not abuse his discretion by failing to instruct members on Marcum analysis). Inherent in this determination is the principle that “[w]hether an act comports with law, that is, whether it is legal or illegal, is a question of law, not an issue of fact for the determination by the triers of fact.” United States v. Carson, 35 C.M.R. 379, 380 (C.M.A. 1965). This principle informs not only the question of whether the Marcum factors must be answered by the military judge or the trier of fact, but also whether the Marcum factors must be included in a specification.

The appellant argues in assignment of error IV that the Marcum factors must be plead and submitted to the trier of fact as de facto elements. However, “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in a case of federal crimes, which are solely creatures of statute. Liparota v. United States, 471 U.S. 419, 424 (1985). Judicially created principles, such as the Marcum factors, are not elements of offenses. As explained in Carson, the Marcum analysis is instead a question of law decided by the military judge. 35 C.M.R. at 380.

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